Costs judge condemns ‘all over the place’ mesh claims

A costs judge has slashed the 62 hours claimed by a firm for work on mesh claims which had ‘striking similarities’ and where their values were wildly over-inflated.

Costs Judge James said the time claimed in HD v Northern Devon Healthcare NHS Trust by now-defunct firm Fortitude Law to draft a letter of claim was unreasonable and disproportionate.

The court looked in March and April at six vaginal mesh cases being handled by Fortitude, which was closed down weeks later by the Solicitors Regulation Authority, which alleged dishonesty by owner Darren Hanison.

There was no suggestion the HD ruling was linked to the SRA action, but the judge was highly critical of how the letter of claim had been prepared by the firm, cutting the  drafting time from 62 hours to the defence’s offer of 15 hours.

James said: ‘I do not find the schedules to have been drafted systematically or with the care and attention to be expected of a boutique clin neg firm specialising in vaginal mesh claims, frankly the six I have seen are all over the place.’

According to the ruling from June but published this week, Fortitude disputed the defence suggestion that its letters of claim amounted to a skeleton argument, likening them instead to a pleading intended to be detailed should the case go to mediation.

The judge explained that in HD the letters of claim took up 14 pages of medical records, which included elements that were not relevant. This method was ‘unhelpful’ to Fortitude, said the judge, and spoke to an ‘unreasonable system of working’.

Copying and pasting of handwritten medical notices was neither necessary nor required and took up several pages in the claim form. ‘This is not a mere question of stylistic preference,’ said the judge. ‘I have never seen professionally-drafted letters of claim like the ones produced by Fortitude Law; they are both unusually long and are in an unusual format.’

The judge picked up on ‘striking similarities’ across all six claims, with sections of identical material and common ground across disclosure requests and references to general and special damages.

‘The overwhelming impression is that Fortitude Law has drafted up a precedent section under each heading and that the fee earners tasked with drafting the letters of claim have had access to those precedent sections.’

The claim in one case itself was pleaded at over 25 times the £30,000 eventually achieved in settlement. The judge said Fortitude spent ‘far too long in trying to plead completely unrealistic and over-pleaded schedules’. Other claims being scrutinised were also over-valued by at least eight times.

‘Claimants often have no idea of what they may or may not claim (or expect) in the way of damages, but a boutique firm specialising in vaginal mesh claims might have been expected not to encourage [the client] to believe she was likely to recover over three quarters of a million pounds (including general damages for PSLA) when in fact her claim settled for £30,000.’

The judge added that it was ‘extremely troubling’ that Fortitude appeared to have given every claimant a baseline care claim, with the amount of time spent quantifying these claims ‘almost entirely worthless in terms of advancing the claimants’ interests.’

She stressed this was not a judgment on any possible misconduct and said this was for the defendant to raise at a future hearing.

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